Five things New Zealand’s copyright law rewrite must cover

Patching its copyright law for the digital age hasn't worked so well, and New …

After the disastrous attempt to graft a "graduated response" Internet disconnection policy onto its existing copyright law, New Zealand's new government first pulled the plug on the idea and has now decided to rewrite the entire copyright act.

Major copyright reform tends to happen infrequently. In the US, for instance, we still operate under the framework of the 1976 Copyright Act, which was the sort of overhaul that New Zealand is now considering. Updates have come in the form of the Sonny Bono Copyright Term Extension Act and the Digital Millenium Copyright Act—both controversial and important laws that nonetheless left most of the 1976 Copyright Act untouched.

In New Zealand, the Copyright Act was passed in 1994 (read it). Though it came nearly 20 years after the US copyright overhaul, New Zealand's Copyright Act was likewise a few years too early to anticipate the digital revolution; various attempts to patch up the law have been made ever since.

Most controversially, this was seen in section 92A, an update to the law that created a "three strikes" regime in New Zealand. The provision ran headlong into massive resistance from citizens and ISPs, and the industry process to craft the broad provision into a workable protocol fell apart. The government, which came to power only in November 2008, pulled section 92a.

According to New Zealand's National Business Review, the government has now scrapped a broader bill, the Copyright (New Technologies) Amendment Act 2008. That bill would have added some format-shifting provisions to copyright law, along with some DRM anti-circumvention rules.

Instead of patching up the crumbling facade of the Copyright Act, which was the approach of the previous government, New Zealand will instead conduct a major rewrite of its 1994 Copyright Act with a focus on digital technology.

Everyone's a copyright activist now

Not that total rewrites are some sort of automatic boon to the digerati. When Canada tried to push through a major overhaul of its copyright regime last year, critics were up in arms over the "Canadian DMCA" and eventually succeeded in pushing it off the legislative agenda.

But the possibility of comprehensive improvements can't be dismissed, either. A wholesale overhaul of the law gives all stakeholders the chance to have a valuable public discussion about copyright and its limitations. Ten years ago, that discussion would have happened between trade groups and the government; thanks to an explosion of citizen interest in such issues over the last few years, though, any copyright overhaul today ignores the voice of the public at its peril.

Just consider all the areas that broad copyright overhaul will touch on—and all of them are contentious. Here are five of crucial ones that such a rewrite absolutely needs to deal with:

Fair use. The public will demand robust (and flexible) fair use rules, while content owners will generally push for specific exemptions and tighter wording.

DRM circumvention. Rightsholders don't want it (see the US DMCA), while the public will demand its right to make backups, bypass CD rootkits, and crack songs after authentication servers go down.

Safe harbor. One of the DMCA's best features is the safe harbor it gives to "service providers" for content that users exchange over its pipes. While content owners have begun pushing for more ISP involvement in piracy issues, such safe harbors exist in both the US and Europe and seem likely to be a part of any copyright overhaul in New Zealand.

Copyright term extensions. Hugely controversial. The EU just added 20 years of protection to musical copyright, guaranteeing Sir Paul a continuing stream of Beatles cash. If New Zealand is really opening up the whole Copyright Act to a rewrite, terms of protection could be on the table once more.

Format shifting, time shifting. So ingrained is CD ripping and DVR usage that it's impossible to believe the law won't sanction them in some way—but it could be limited. Under the Copyright Amendment Act (now pulled) only musical format shifting would have been allowed; video would not have been included.

Good luck, Kiwis! Such an overhaul process will by necessity be slow, but the activists who helped to bring down the "graduated response" law will no doubt be out in force to argue for a much bigger prize.